Stadier v. Findley

In a negligence action to recover damages for personal injuries, the defendants appeal from an order of the Supreme Court, Suffolk County (Hand, J.), dated February 16, 1988, which denied their motion for summary judgment dismissing the complaint. Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed. Contrary to the plaintiff’s contentions, her deposition testimony to the effect that she suffers intermittent pain in the shoulder and neck as a result of the accident, in conjunction with a previous medical diagnosis of "cervical radiculitis”, is insufficient to establish a prima facie case of serious injury which requires a showing that she suffered permanent consequential limitation of use of a body organ or member (see, Insurance Law § 5102 [d]; Scheer v Koubek, 70 NY2d 678; Popp v Kremer, 124 AD2d 720; cf., Mooney v Ovitt, 100 AD2d 702). Thus, the defendants are entitled to summary judgment dismissing the complaint. Brown, J. P., Eiber, Kooper and Balletta, JJ., concur.